Sorry, but I can't answer specifically about Ontario nor job fact sheets
(what are those anyway??) ... But ... There is a new Ethics Opinion out
from the Arizona Bar that also touches on this topic. Probably won't
solve anything for you, but may get you to think about it in a slightly
different way.
Gotta run!
Julie
(for those on the PLL-legalrec-sis list, please forgive my blatant
re/cross posting of Lee Nemchek's earlier message)
Summary from BNA (a legal publisher):
23 Law. Man. Prof. Conduct 324 (BNA)
Lawyer May Keep Paperless Files, Except for Certain Key Documents
With appropriate precautions, a lawyer may "go paperless" and keep
active and closed files solely as electronic images, with the
understanding that the lawyer must be capable of producing paper
versions to the client and any subsequent attorney upon request,
according to an opinion issued in June by the Arizona bar's ethics
committee (Arizona State Bar Comm. on the Rules of Professional Conduct,
Op. 07-02, 6/07).
The committee made clear, however, that a lawyer who digitizes a file
may not without client consent destroy original paper documents that
belong to or were obtained from the client. Similarly, without client
consent a lawyer may not destroy photocopies or facsimiles of documents
obtained from a client if the lawyer has reason to know that the client
expects the lawyer to keep the paper documents. And "legally operative
documents" may need to be kept in their original form, the opinion
states.
Many Inquiries.
The committee said it chose sua sponte to issue this formal opinion on
keeping paperless files because many lawyers have requested informal
advice on the subject.
Arizona Ethics Op. 05-04 (2005) concluded that it is not unethical to
store client information and confidences on computer systems. The
present opinion goes further by addressing whether a lawyer may keep the
entire file solely in electronic form by digitizing all documents-that
is, converting them to electronic images such as Adobe's portable
document format-and then destroying the paper documents.
The committee noted that its seminal opinion on file retention following
termination of retention, Arizona Ethics Op. 98-07 (1998), concluded
that the client generally owns materials in a client's file that the
lawyer obtained from the client, but that the balance of the file
generally belongs to the lawyer subject to the former client's right to
access the file.
Documents From Client.
Although the committee found these basic principles applicable to the
question of keeping paperless files, for present purposes it
differentiated between original documents obtained from a client and
photocopies obtained from a client.
"Clearly, a lawyer may not digitize and then, without the client's
consent, destroy original documents obtained from the client," the
committee stated. "The digitized version is not the same as the
original, and the client has an interest in maintaining the integrity of
the original documents."
In contrast, the committee noted, a photocopy is already a substitute
for the original, and digitizing the photocopy merely keeps that
substitute in a different format. "We therefore conclude that after
digitizing a photocopy or facsimile of a document, the lawyer may
destroy the hard copy unless the lawyer has reason to know that the
client does not or would not want the lawyer to discard it." For
example, the committee explained that it may not be prudent to destroy a
photocopy that is the only available version of an original.
The lawyer may avoid questions by obtaining the client's consent at the
beginning of representation, during representation when the client
provides documents to the lawyer, or at a later time such as the end of
the representation, the opinion advises.
Alternatively, the lawyer may return documents to the client after
digitizing them, the committee observed.
Balance of File.
"In general, we see nothing per se unethical with a lawyer choosing to
maintain the balance of a file, whether active or closed, solely as
electronic images," the panel stated. It concluded that lawyers do not
need a client's consent to adopt this approach.
Neither the ethics rule on safekeeping property (Rule 1.15 of the
Arizona Rules of Professional Conduct) nor the rule that addresses
duties on termination of representation (Rule 1.16) dictates that a
lawyer must keep a client's legal file in paper form, the committee
said.
"Clearly, a lawyer may not digitize and then, without the client's
consent, destroy original documents obtained from the client." Arizona
Ethics Op. 07-02
The committee agreed with the statement in Virginia Ethics Op. 1818
(2005), that "it matters not generally what form the documents in the
file take, but instead whether all the documents necessary for the
representation are present in the file."
Lawyers may treat letters received from the client as part of the
balance of the file that may be digitized and destroyed rather than as
original documents that may not be destroyed without client consent, the
committee decided.
Discretion to Choose.
A lawyer who is contemplating keeping a client's file solely in
electronic form will need to determine whether it is in the client's
best interest to do so, the committee said, noting that many legal
matters may involve "legally operative documents" that should be
maintained in their original form.
Lawyers also must keep in mind their obligation to provide clients with
access to their file, the committee said. It noted that according to
Rule 1.16(d), an attorney must honor a client's request for the client's
documents and "all documents reflecting work performed for the client."
The committee interpreted that provision as requiring lawyers to provide
meaningful access. A lawyer cannot simply hand the client a disk without
confirming that the client is able to view the digitized images, it
said. If the client or the client's new counsel cannot view the images,
the lawyer may need to provide paper copies of the documents at her own
expense.
Lawyers need to guard against damaging or omitting parts of the file in
the process of digitizing it, the committee added. Further, it
recommended that lawyers choose a format that lends itself to long-term
storage, and that they take steps to insure that the digital medium is
properly stored so as to maintain its shelf life.
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